Ruling awarding dad joint custody tossed for lack of findings

The ruling of a Marion County judge that awarded a father joint physical custody lacked sufficient reasoning and was reversed on appeal Thursday.

The Indiana Court of Appeals reversed the joint-custody order in M.G. v. S.K., et al., 20A-DR-712.

Judge Timothy Oakes in February granted father S.K. joint physical custody of the only child he had with mother M.G. After the couple divorced in 2015, they agreed to share legal custody, with mother having sole physical custody of their then-18-month-old.

Father had completed anger management classes for alleged criminal confinement of mother, and he progressed from supervised parenting time to unsupervised parenting time with his child.

Father then moved for joint custody in 2019 and mother cross-petitioned for sole legal custody and the appointment of a guardian ad litem. “The GAL testified that she had no environmental concerns with either parental home. She related the opinion of Child’s therapist that Child was bonded with both parents. The GAL identified no concerns with Child’s academic progress, socialization, or health. She described Child as ‘happy with her schedule’ and having no ‘wish to change.’

Nevertheless, the court ordered a modification in which the child would alternate between parental homes on a weekly basis. That order was stayed pending appeal, and the COA reversed for lack of findings and, in some cases, findings that found no support in the record, such as mother allowing the child to become overweight.

“(T)he evidence did not show that Child was overweight,” Judge L. Mark Bailey wrote. “Child was in the 99th percentile for weight for her age, but she was also in the 99th percentile for height. The GAL denied that Child appeared overweight. Father conceded that he had not been medically advised to attempt to reduce Child’s weight; at most, he expressed his concern based on family history of diabetes. Even so, there was no evidence that Mother’s conduct contributed to Father’s concern over Child’s weight.

“… ‘[T]he purpose of Rule 52(A) is to provide the parties and the reviewing court with the theory upon which the trial judge decided the case in order that the right of review for error may be effectively preserved.’ Nunn Law Office v. Rosenthal, 905 N.E.2d 513, 517 (Ind. Ct. App. 2009),” Bailey wrote. “Here, the trial court made certain factual findings praising Father’s parental abilities and criticizing Mother’s inflexibility. However, the theory upon which modification was premised is not evident, given the lack of reference to a substantial change in any statutory factor or an explicit conclusion that modification is in Child’s best interests. Additionally, the trial court failed to enter special findings and conclusions thereon addressing Mother’s petition to modify joint legal custody of Child to Mother’s sole legal custody.

“The trial court did not enter an order in compliance with Indiana Trial Rule 52(A) adequate to permit meaningful appellate review,” the panel concluded in reversing.

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